Tuesday, September 24, 2013

How Did Aaron Alexis Get a Security Clearance?

The tragic shooting incident at the Washington Navy Yard last week raises many troubling questions about the security clearance process. How can someone so clearly mentally ill obtain and keep a security clearance? Who dropped the ball? Of course, we now have numerous after-the-fact promises to review the system and plug the loopholes. But what went wrong, and what can be done to fix it? Also, does this mean that anyone with mental health issues will be barred from getting a clearance?

It used to be that anyone who sought mental health treatment was indeed considered a security risk. But in the 1980's, a more enlightened view fortunately began to prevail. Seeing a mental health counselor was no longer considered an absolute bar to getting a security clearance. In fact, it was acknowledged that a person who recognizes that he or she needs help and gets it is more likely to be stable than someone whose condition goes untreated.

Thus the issue became whether the individual had an illness that could adversely affect his or her judgment and trustworthiness. For example, someone seeing a counselor for “garden variety” anxiety or depression, even someone taking antidepressant or anti-anxiety medication, would not normally be denied a clearance. That is still the case today.

Problems could still arise for someone with a more serious disorder. For example, someone with bipolar disorder and on medication would have to demonstrate that for a period of at least a year, he or she is complying with the doctor’s treatment recommendations and is reliably taking the prescribed medication. Where the diagnosis is something for which medication is not reliably able to control the symptoms, such as paranoid delusions or psychotic episodes, getting a clearance would be much harder, if not impossible. Someone in the throes of a psychotic episode might inadvertently reveal classified information.

So how could Aaron Alexis - the Navy Yard shooter - have stayed under the radar? The security clearance form he was required to fill out asks about mental health treatment for the past seven years. But it appears that he only had to complete the form once, when he enlisted in the Navy Reserves in 2007. News reports available to date do not indicate that he had any mental health treatment up to that time.

The security clearance form relies on the truthfulness of the individuals who fill out the form. Although there is a penalty for perjury if the government finds out that a person has “falsified” the form, even a detailed background investigation as currently established is not going to discover that an individual has seen a psychologist or psychiatrist.

As an aside, what about Alexis’s gun-related arrests? How is it that the background investigation did not reveal this? News reports say there were three such incidents. The first occurred in 2004. Alexis was arrested in Seattle after he fired three shots from a Glock pistol into the tires of a car that two construction workers had parked in a driveway adjacent to Alexis’s house. Then in 2008 he was arrested and jailed for two nights in Georgia after he was removed from a nightclub by authorities for damaging furnishings. He then shouted profanities at the arresting officers.

Yet again, in 2010, the police were called to Alexis’s apartment after his downstairs neighbor complained that he had fired a bullet through his floor and her ceiling. The woman told officers she had called several times about Alexis being too loud. Alexis was arrested for improperly discharging a firearm, but the county district attorney’s office said there wasn’t enough evidence to pursue the case. Alexis apparently claimed that he accidentally discharged his weapon while he was cleaning it.

Only the first incident had occurred at the time of Alexis’s background investigation. One arrest, three to four years before the adjudication of his clearance, with no other incidents or problems on file, did not jeopardize the granting of his secret security clearance.

So Alexis’s “secret” level clearance remained good for ten years, with no new background check. When he got out of the Navy in 2012 and went to work for the defense contractor, his employer hired a private company to conduct background checks. According to news reports, that company found “no significant law enforcement problems” in Alexis’s history, and it confirmed that Alexis’s 2007 security clearance from the Defense Department was still valid. Presumably the 2008 and 2010 arrests did not show up when the private company did its background check.

Had there been a new security clearance review, and had the 2008 and 2010 arrests been made known to the adjudicators, it is highly unlikely that Alexis would have been cleared. As a contractor, he would have been issued a “Statement of Reasons” why his clearance was being revoked, and the right to have a hearing before an administrative judge at the Defense Office of Hearings and Appeals (DOHA) to explain his behavior.

The legal standard applied by the DOHA judge is whether it is clearly consistent with the national interest to grant the clearance. If not, the judge is obligated to deny the clearance. This standard means that any doubt must be resolved against the granting of the clearance. This is a more strict standard than the criminal law’s “beyond a reasonable doubt.”

A word about arrests: from a security clearance perspective, the fact that the individual was not brought to trial and was not convicted does not mean that the incidents do not have security significance. From a civil rights perspective, for example, we know that minorities are arrested more frequently than whites, and this is why employment discrimination rules forbid prospective employers from asking job candidates about arrests. But these considerations do not apply in the security clearance context. The position of the adjudicators is that they have a right to know all of the facts and determine whether they have a bearing on the individual’s stability and reliability.

For example, a wife whose husband attacked her may decide not to bring charges against her husband, causing the case to be dropped. But the security clearance adjudicators still want to know what happened, because it is relevant to whether the husband is a security risk.

More frequent background checks would certainly give the government more timely information. Had Alexis been required to fill out a new SF-86 form in 2012, he would have been obligated to disclose the 2008 and 2010 arrests, as well as the disciplinary actions taken against him as a Navy reservist. If he sought any mental health treatment, that, too, would have been captured on the form.

Candidates are also required to sign a waiver allowing the background checkers to obtain information from the mental health providers they saw. Lest there be objections that checking insurance or hospital records violates the employee’s right to privacy, the law is clear that there are no such rights when it comes to a security clearance. Having a clearance is considered to be a “privilege,” not a “right.” As a result, employees are required to waive their privacy rights and give the government written permission to see doctors’ and hospital records. HIPAA does not apply. If they do not sign the waiver, the government’s response is: you have the right to decline. But we have the right not to give you a security clearance.

There is also the issue of self-reporting. Individuals with security clearances are supposed to report to their security officers any incident that could have a bearing on their eligibility for a security clearance. This would have demanded that Alexis report his 2008 and 2010 arrests, as well as the disciplinary actions he received in the military. But this is honored more in the breach.

One approach to obtaining information between background investigations is to place an obligation on co-workers and supervisors to report any suspicious conduct they notice in other employees. This has advantages and disadvantages. On the one hand, co-workers may be in the ideal position to notice when an office-mate is acting strangely. Sometimes that strange behavior is a legitimate clue to the fact that the office-mate has developed a mental illness or a lack of impulse control that could lead to an intentional or unintentional compromise of classified information.

In fact, in August of this year, Alexis’s employer grew so concerned over his erratic behavior on a business trip that it ordered him home for a rest break, and even called his mother to express its concerns. The employer also called the Residence Inn in Rhode Island where Alexis was staying to say that he was “unstable and the company is bringing him home.”

And we also know that the Newport RI police called the Navy after Alexis called them complaining that he was hearing voices of three people who had been sent to follow him and keep him awake and were using “some sort of microwave machine” to send vibrations into his body. Tragically, apparently no one passed that report beyond the naval station’s security office. Nor did Alexis’s visits to the VA hospitals in Rhode Island and DC trigger any reports.

But there is also great potential for abuse. A vindictive co-worker could file a report on an office colleague in a fit of jealousy. A boss who thinks that a subordinate has a weird personality and just doesn’t fit in, or who thinks his female subordinate is “too emotional,” could file a report in order to get the employee out of his or her office. Then the burden is placed on the employee to show that he or she does not have a mental illness that has an adverse effect on his or her judgment or trustworthiness. This can involve the employee being placed on leave without pay and having his or her security clearance suspended. The employee then must hire an attorney and obtain a psychological evaluation, all at the employee’s own expense. The best practice would require the agency to reimburse the employee for these expenses when the clearance is adjudicated favorably.

Objections may also be lodged that the boss who is filing the report is discriminating on the basis of the employee’s disability or sex. But the security clearance process is considered to trump all laws passed by Congress, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act, which bars discrimination in employment on the basis of race, sex, religion, and national origin. The security clearance process is controlled exclusively by the executive branch of government. Therefore any legislation passed by Congress cannot interfere with the executive’s ability to determine who should be eligible for access to classified information.

Notwithstanding these rules, we now know that when it came to Alexis, the ball was dropped; indeed, many balls were dropped. We know that Alexis’s Navy superiors were in the middle of preparing his case for a general discharge on the basis of his having engaged in a pattern of misconduct, including failing to show up for work and being insubordinate. But before they could finalize the discharge, Alexis applied for an early discharge under the Navy’s “early enlisted transition program.” Taking the easy way out, the Navy allowed Alexis to leave with an honorable discharge. One cannot fail to draw similarities with the case of Maj. Nidal Hassan, the Fort Hood Texas shooter, who showed frequent signs of mental instability, but his superiors shuffled him on to the next assignment rather than grapple with the implications of his behavior.

So could a more effective security clearance process have kept Alexis from shooting innocent civilians last Monday? No, even if he did not have a security clearance - and access to a military post - Alexis still could have wreaked the same havoc in another office building. I will leave it to gun control advocates to address how easy it is to buy guns in this country.

But this is certainly an appropriate occasion to address loopholes and gaps in the security clearance process:

- First, ten years is too long a period of time for there to be no check into the behavior and conduct of someone who has access to classified information. A full background investigation would require resources that are not now being devoted to this process. They system is already horribly backlogged, and the main company conducting these checks - USIS - was already under investigation even before the Alexis and Snowden cases arose.

- Employees with clearances should be required to file yearly updates disclosing issues such as arrests, disciplinary action, drug and alcohol use, financial problems, and psychological counseling. Even if a full background investigation is not done annually on every clearance holder, this disclosure of adverse information would be sufficient to trigger further scrutiny of that individual’s stability and trustworthiness.

- Employees with clearances should be given clear instructions requiring that they self-report any relevant incidents between reporting cycles.

- Supervisors should be given training on how to recognize behavior that may indicate that an employee is suffering from a serious emotional or mental problem that could impair his or her judgment and trustworthiness. Before an employee is placed on leave, and before the employee’s clearance is suspended, the employee should be interviewed and given the opportunity to explain why the issues that were reported by the supervisor have no adverse security significance.

In closing, there is valid reason for concern that the Alexis case will cause a retrenchment from the current understanding that someone who seeks mental health treatment is not a security risk. Moreover, individuals may once again fear seeking such treatment. This would be a terrible regression from today's enlightened view.

By Elizabeth L. Newman

The author is a Washington lawyer who advises and represents employees in the security clearance process and is the author of “Security Clearance Law and Procedure,” Dewey Publications (2008).